Madras High Court
Mr.A.D.Padmasingh Isaac vs Theivaraja Vasu on 27 July, 2022
Author: Senthilkumar Ramamoorthy
Bench: Senthilkumar Ramamoorthy
C.S.(Comm.Div.) No.149 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 27.07.2022
CORAM
THE HONOURABLE MR.JUSTICE SENTHILKUMAR
RAMAMOORTHY
C.S.(Comm.Div.) No.149 of 2021
and O.A.Nos.230, 231 of 2021
1.Mr.A.D.Padmasingh Isaac
Proprietor,
Aachi Spices and Foods
Old No.4, New No.181/1,
6th Avenue, Thangam Colony,
Anna Nager, Chennai - 600 040.
2.M/s.Aachi Masala Foods Private Limited,
No.1926, 34th Street, I Block,
Ishwarya Colony, Anna Nagar West,
Chennai - 600 040
Represented by its Director
Mr.Ashwin Pandian ... Plaintiffs
vs.
Theivaraja Vasu
Proprietor
Sun Nila Food Products,
2-10-6, Kamarajar Nagar,
Keelasurandai, VK Pudhur,
Tenkasi - 627 859. ... Defendant
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C.S.(Comm.Div.) No.149 of 2021
PRAYER: Plaint filed under Order IV Rule 1 of the Original Side Rules
And Order VII Rule 1 of the CPC Read With Sections 27(2), 29, 134 and
135 of the Trademarks Act, 1999, prayed for Judgment and Decree:-
(a) Granting a permanent injunction, restraining the defendant, by
itself, its servants, agents, distributors, or anyone claiming through them
from manufacturing, selling, advertising and offering for sale using the
trademark MACHI or any other similar Trademark name or similar
sounding expression in any media or the red oval device Machi in relation to
any products including Coffee, tea, cocoa and artificial coffee, Rice, pasta
and noodles, Tapioca and sago, Flour and preparations made from cereals,
Bread, pastries and confectionery, Chocolate, Ice cream, sorbets and other
edible ices, Sugar honey, treacle, Yeast, baking-powder, Salt, seasonings,
spices, preserved herbs, Vinegar, sauces and other condiments, Ice (frozen
water) and use the same pouches, packets of masalas and spices or any
other goods and use the same in name board, invoices, letter heads and
visiting cards or by using any other Trademark, which is in anyway visually,
and deceptively similar to the plaintiff's registered Trademark "AACHI"
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C.S.(Comm.Div.) No.149 of 2021
word and Aachi device or by using any other Trademark which is in any
way visually, and deceptively similar to the plaintiff's registered Trademark
No.838786 and 1731915 or in any manner infringe the plaintiff's registered
Trademark.
(b) Granting a permanent injunction, restraining the defendant, by
itself, its servants, agents, distributors, or anyone claiming through them
from manufacturing, selling, advertising and offering for sale using the
trademark MACHI / Machi or any other similar Trademark name or similar
sounding expression in any media o the read oval device as shown in
Document No.2 by using any other trademark which is in anyway,
phonetically, visually or deceptively similar to the plaintiff's Trademark
'AACHI word and Aachi device' as shown in Document No.1 relation to
above mentioned products Coffee, tea, cocoa and artificial coffee, Rice, pasta
and noodles, Tapioca and sago, Flour and preparations made from cereals,
Bread, pastries and confectionery, Chocolate, Ice cream, sorbets and other
edible ices, Sugar, honey, treacle, Yeast, baking-powder, Salt, seasonings,
spices, preserved herbs, Vinegar, sauces and other condiments, Ice (frozen
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C.S.(Comm.Div.) No.149 of 2021
water) and use the same pouches, packets of masalas and spices or any
other goods or use the mark in invoices, letters heads and visiting cards or
any other trade literature or by using any other Trademark which is in any
way visually and deceptively similar to the plaintiff's Trademarks 'AACHI
word and Aachi device' as shown in Document No.1 in any manner pass off
the plaintiffs goods.
(c) Directing the Defendant to surrender to the plaintiffs all the
packing material, cartons, advertisement materials and hoardings, letter-
heads, visiting cards, office stationery and all other materials containing /
bearing the name MACHI / Machi or other deceptively similar trademark
used in the pouches and packets in respect of their products.
(d) Directing the Defendants to render an account of profits made by
them by the use of the impugned Trademark MACHI / Machi on the goods
referred and decree the suit for the profits found to have been made by the
Defendant, after the Defendant has rendered accounts.
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C.S.(Comm.Div.) No.149 of 2021
(e) Directing the defendant to pay to the plaintiffs the costs to the suit.
For Plaintiffs : Mr.Gladys Daniel
**********
JUDGMENT
The suit was filed seeking relief in respect of alleged trademark infringement and passing off. Suit summons was served on the defendant on 10.06.2022. In spite of service of suit summons, there was no representation for the defendant at the hearing on 27.06.2022. Therefore, the Registry was directed to print the name of the defendant in the cause list and the matter was listed on 11.07.2022. In view of the non appearance of the defendant, the defendant was set ex parte.
2. The plaintiffs examined Mr.B.Gnanasambandam, its General Manager - L & S, as P.W.1. In course of the examination in chief of P.W.1, 26 documents were exhibited as Exs.P1 to P26.
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3. Learned counsel for the plaintiffs refers to Ex.P2, which is a representation of the device mark of the plaintiffs. The said mark consists of the word AACHI against a red background encircled by a ring in yellow.
Learned counsel also refers to the impugned mark "MACHI", which was exhibited as Ex.P24. By comparing the two, it was submitted that the words are phonetically and visually similar and that the font and colour scheme are identical. Learned counsel also referred to the legal user certificate to establish that the registration was in class 30 in relation to all kinds of masala powders and spices. It was asserted that the mark is being used in relation to a range of spices and other food products. By drawing reference to the application to register the impugned mark, which was exhibited as Ex.P25, it was pointed out that such application was filed under class 30 in relation to food products, including spices and seasonings.
4. On examining the evidence adduced by the plaintiffs and, in particular, by comparing the registered device mark of the plaintiffs and the impugned mark, it is evident that the two marks are deceptively similar in 6/11 https://www.mhc.tn.gov.in/judis C.S.(Comm.Div.) No.149 of 2021 several respects. They are clearly phonetically similar and an identical font and colour scheme is used. In addition, they are used in relation to similar goods. Consequently, the plaintiffs are entitled to the reliefs prayed for in clause (a) to (c) of paragraph 36 of the plaint. In the absence of the defendant, it is not possible to obtain accounts, compute profits and direct payment of additional Court fee. For such reason, the relief prayed for in clause (d) of paragraph 36 of the plaint is rejected. The plaintiffs are also entitled to costs.
5. In the result, C.S.(Comm.Div.) No.149 of 2021 is decreed in terms of prayers (a) to (c) of paragraph 36 of the plaint. In addition, the defendant shall pay costs of Rs.1,50,000/- (Rupees One lakh Fifty Thousand only) to the plaintiffs towards Court fees, reasonable lawyer's fees and expenses.
Consequently, the O.A.Nos.230, 231 of 2021 are closed.
27.07.2022 rna Index : Yes / No Internet : Yes / No 7/11 https://www.mhc.tn.gov.in/judis C.S.(Comm.Div.) No.149 of 2021 Plaintiff's witness:
P.W.1 - B.Gnanasambandam.
Documents exhibited by the plaintiffs:
Exhibits Documents
Ex.P1 Original Authorization letter dated 18.07.2022.
Ex.P2 Original board resolution dated 03.12.2020.
Ex.P3 Plaintiff's Label.
Ex.P4 Printout of list of products manufactured and marketed by the
plaintiffs bearing the trademark AACHI (under Section 65B of the Evidence Act, 1872).
Ex.P5 Certificate of incorporation of Aachi Masala Foods P Ltd.
Dated 30.06.2006 (Compared with original). Ex.P6 Certificate of Commercial Tax Registration of Aachi Masala & Foods (P) Ltd dated 10.07.2006 (Compared with original). Ex.P7 Dissolution Deed between Mrs.Rani Pandian and the Mr.A.D.Padmasingh Isaac dissolving the partnership firm, Naveen Products dated 31.03.2007 (compared with original). Ex.P8 Certificate of Commercial Tax Registration and Central Sales Tax of Aachi Spices & Foods dated 28.12.2006 and 03.01.2007 (Compared with original).
Ex.P9 Trademark License user Agreement between Mr.A.D.Padmasingh Isaac trading as Aachi Spices and Foods and Aachi Masala Foods Pvt. Ltd. dated 01.04.2007 (compared with original).
Ex.P10 Memorandum of Association of Aachi Spices and Foods P. Ltd., dated 06.03.2010 (compared with original).
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dated 17.03.2010 (compared with original). Ex.P12 Trademark License user Agreement between Mr.A.D.Padmasingh Isaac and Aachi Spices and Foods Pvt. Ltd. dated 21.04.2010 (compared with original). Ex.P13 License user Agreement between Mr.A.D.Padmasingh Isaac and Aachi Masala Foods P Ltd dated 21.04.2010 (Compared with original).
Ex.P14 Trademark License user Agreement between Mr.A.D.Padmasingh Isaac and Aachi Masala Foods P Ltd dated 04.03.2020 (compared with original). Ex.P15 License user Agreement between Mr.A.D.Padmasingh Isaac and Aachi Spices and Foods Pvt Ltd, dated 04.03.2020 (compared with original).
Ex.P16 Certified copy of plaintiffs Advertisement in RITZ Magazine. Ex.P17 Registration Certificates of the mark AACHI in various countries around the world (compared with original). Ex.P18 Madrid Protocol Registration in classes 29, 30, 43 with respect to the Trademark AACHI (Word) (Device) designating 107 & 117 countries valid and subsisting as on date (compared with original).
Ex.P19 Certified copies of the Sample Sales Invoices for the years 2000-2020.
Ex.P20 Certified copy of the Sample Advertisement Invoices and Expenses for the years 1999-2020.
Ex.P21 Certified copy of the Chartered Accountant certificates dated 02.03.2017 and 20.07.2020.
Ex.P22 Legal use certificate of Trade No.838786 dated 29.01.1999 (compared with original).
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C.S.(Comm.Div.) No.149 of 2021
Exhibits Documents
Ex.P23 Legal use certificate of Trade No.1731915 in Class 30 dated
15.09.2008 (compared with original).
Ex.P24 Defendant's Label.
Ex.P25 Printout of the defendant's Trademark Application
No.4554607 dated 03.07.2020.
Ex.P26 Printout of the Notice of Opposition under No.1062077 in
Application No.4554607 dated 03.07.2020.
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